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Immunity from seizure: Interpreting Section 89(1) of the Indian Act

On June 19, 2017, the Québec Superior Court (“the Court”) handed down a decision1 on the immunity from seizure granted by the Indian Act (“the Act”).2 The defendant, Mr. Robertson, an Indian within the meaning of the Act, objected to three judgments issued against him by the Court of Québec and the Superior Court ordering a seizure of his income and his movable assets located on the Mashteuiatsh Reserve, in Saguenay-Lac-Saint-Jean. The convictions totalled an amount of more than $265,000, including interest and costs. In the view of the Court, the defendant party, i.e. Corporation de développement économique montagnaise (“CDEM”), could not be considered an Indian or an Indian band within the meaning of the Act.

In March 2015, an enforcement notice was filed by the CDEM to seize Mr. Robertson’s assets, and enforcement was carried out in April 2015. At the same time, the CDEM also proceeded with a seizure by garnishment order against Mr. Robertson’s employer, Société de développement économique iInu.

Mr. Robertson objected to both seizure orders on the grounds that they were irregular, unlawful and void under section 89(1) of the Act, which states that property situated on a reserve is protected from seizure. For its part, the CDEM did not challenge the objection to the garnishment order, but argued that by effecting a movable hypothec on the universality of his business assets, he waived the rights conferred on him by section 89(1) of the Act.

At issue was whether a registered Indian can waive the immunity from seizure provided by section 89(1). In 1995, Justice Paul Vézina stated in Sioui,3 without closing the door on an express waiver, that immunity cannot be waived when waiver is tacit. In 2006, in McDiarmid Lumber Ltd. v. God’s Lake First Nation,4Chief Justice McLachlin held that Parliament, through section 89(1), did not seek to exempt Indian property in a broad sense, thus implying that in some cases, particularly in matters of credit, enforcement would be possible by a creditor against the property of an Indian.

In this case, the Court determined that there was no clear, unequivocal waiver by Mr. Robertson of the immunity from seizure granted by the Act. That being the case, the movable hypothec on the universality of assets was insufficient for constituting a waiver, since it did not contain an express waiver. The objections to both seizure orders were therefore upheld by the Court.

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